One of the most interesting forms of trademark in circulation is the motion trademark
A Moving Logo
A motion mark may be an animation created using a computer program, or some other moving object which exists in the real world. In particular, such a mark may be in the form of a gesture made by a person using various parts of the body, especially the hand. Submitting a motion trademark involves the same criteria of assessment as do other forms of trademarks, but motion marks remain but a small fraction of the trademark submissions made in the European Union.
A motion trademark should have distinctiveness, and should be possible to depict precisely in an application. The presentability of motion marks depends on being able to depict a series of movements by an appropriate arrangement of a sequence of images. It is also crucial to provide a sufficiently exact description of the mark, including the order and form of the movement occurring in the images. In a motion mark, it is precisely the motion and the succession of scenes which are the most important aspects which may be subject to protection. Care must also be taken, since motion marks cannot appear in trade in “pure” form, but only as a combination of marks, for example, movement and sound (e.g. application CTM No. 003429909 showing clasping hands, used for some time by the company Nokia).
Despite their complexity, motion marks do not belong among those whose graphic presentability raises doubts in the majority of cases. The presentability of such marks is interpreted fairly liberally. A motion mark must be deemed perceptible by the sense of sight. There does exist, however, a certain doubt as to whether this type of trademark in every case meets the requirement of a uniform designation – for it may be the case that it is not possible to take in an animation by a single act of perception. When preparing an application for a motion mark, it is necessary to ensure that the mark is suitably brief and coherent. A failure to meet the requirement of uniformity may be raised by the authority considering an application for registration of this type of mark.
When a decision is taken on the protection of a motion mark, particularly one which presents a specific device or elements thereof in motion, an application may be rejected by the authority if the mark is for the purpose of protecting the way the device works or its construction or function. A trademark is for the purpose of identifying the goods or services of a particular business and to distinguish them from those of other businesses. The perpetual monopoly resulting from the registration of a trademark should be not extended to technical solutions. Such features of goods, when they meet certain assumptions, may be the subject of limited patent protection.
It is worth recalling the attempt to register the motion trademark “lambo doors” (application CTM No. 001400092). A sequence of movements showing the characteristic opening of the doors used in Lamborghini brand cars was not granted registration as a Community trademark by the OHIM. The submission of the mark consisted of a description of the way the doors open, together with four images showing a sequence of the motion of the doors. That mark did not achieve registration because of its lack of distinctiveness, and because it was functional. The application was approved, however, in the USA, where this type of trademark presentation is treated more liberally.
Motion marks, which are non-conventional visual trademarks, depict the movement of objects, figures or a combination thereof. Marks of this type may be presented as film, recordings or a moving logo, and may also be in the form of a designation composed of graphics and text combined in motion.
Author: Michal Ziolkowski